Every Circumcision Includes Affirmable Objective Harm

Disclosure: I am the author of the first link in this post.

The AAP has released its revised statement on non-therapeutic male circumcision, which provides the contradictory conclusions that the possible benefits outweigh the risks (without mention of the costs) and that not everyone will conclude that the possible benefits outweigh the risks for their family. Another prominent libertarian has chimed in on non-therapeutic infant male circumcision, this time with a different take than Doug Mataconis’ flawed non-libertarian advocacy from last week. Today, George Mason University Law Professor David Bernstein posted on the revision at The Volokh Conspiracy. He engages in a better approach, but his conclusion is also wrong.

At the risk of provoking the ire of anti-circumcision zealots (you know who are), I thought I’d mention that the American Academy of Pediatrics, reversing a previous neutral stance, is now endorsing male circumcision based on a review of recent scientific evidence.

Zealots. If that’s the word choice, then describe the opposition correctly. I oppose non-therapeutic genital cutting (i.e. circumcision) on non-consenting individuals. That is different than being merely anti-circumcision. I don’t care if someone has himself circumcised. I care very much if someone is circumcised without medical need and without his consent. This is based on the same principle and understanding of facts that forms my opposition to an individual having her genitals cut without medical need and without her consent.

I undertook a reasonably thorough review of the existing evidence myself, frankly with a bias toward finding that circumcision was overall harmful. I was aware that circumcision, like several other medical procedures (think episiotomy during childbirth) was encouraged for decades by an unthinking medical establishment that didn’t undertake the research needed to support its recommendations. I was perfectly willing to believe that circumcision had few if any health benefits, had significant costs, and should be done only for religious reasons if at all.

I believe that. However, it implies a validity for the decision to circumcise a healthy child that is illegitimate. Proxy consent for surgery must start with medical need, not the possibility of positive benefits. The subjective value of the pursued speculative benefits rests with the decision-maker, not the individual who will live with the surgical alteration to his body. The only objective outcome he receives is the unavoidable physical harm from the surgical intervention.

I couldn’t find such evidence. Instead, I found that it has small but real health benefits, and that there is no sound evidence of reduced sexual function (I know, tons of nerve endings, blah blah blah, but where is the evidence that on average it makes sex less enjoyable? Studies on men circumcised as adults don’t provide such evidence). I’m not sure that would be enough to lead me to circumcise my own son (mostly because of squeamishness) [if I weren’t Jewish, and had a son], but I think it’s an easy call if you plan to raise your son Jewish; the last thing you want is for your kid to decide at age 20 or whatever that his religion demands circumcision, and to have to undergo it then, when the risks and pain are much worse. (If there was sound evidence of harm from circumcision, that would be a different story).

I recognize those possible health benefits. I agree they’re small, which I’m glad is stated in Prof. Bernstein’s post. But there are possible flaws, even outside potential methodological flaws. The obvious ethical flaw is declaring results found with adult volunteers should then be applied at parental request to healthy infants who do not consent.

The non-obvious physical flaw is that infant and adult circumcision are not quite the same procedure. In infancy, the foreskin is fused to the glans. To circumcise a child, his foreskin must be separated from the rest of his penis. The bond formed by the synechia must be broken, which may inflict additional scarring on the glans of the infant. The circumciser must estimate how much skin to remove and work with an obviously much smaller penis. Too little or too much may be removed, assuming the circumcised is even pleased with his parents making his decision. The circumciser also does not know whether to leave or remove the frenulum. (It is usually removed.) These concerns are minimized or non-applicable when waiting until adulthood. There are trade-offs in both directions, not just the alleged preferablity of infant circumcision.

The obvious physical flaw is more apparent. Circumcision inflicts objective harm in every case. The normal, healthy foreskin is removed. Nerve endings are severed. (The absence of evidence on how that affects sexual pleasure is not an argument in favor of infant circumcision. Prof. Bernstein’s position incorrectly assumes it favors his analysis.) The frenulum may be removed. Scarring remains. And the risk of further complications exists in every circumcision. Some males will experience complications, including possibly severe complications. That is all sound evidence of harm from every circumcision.

The “right to bodily integrity” argument so popular in Europe these days doesn’t sway me. What if your kid is born with six fingers, or with an ugly mole on his face, neither of which are causing harm beyond the aesthetic, and removal of either of which will cause some pain? Does his “right to bodily integrity” mean that you have to wait until he’s sixteen to let him decide whether to remove the appendage? Those strike me as harder cases than circumcision, given that circumcision actually provides some medical benefits. But I think it would be absurd to ban, or even discourage, removal.

This compares either abnormalities or subjective cosmetic opinions to the normal foreskin. I think it would be less compelling to ban intervention on children in those non-therapeutic cases, as opposed to the clear need to prohibit non-therapeutic child circumcision, but I don’t think it’s automatically absurd to intervene in those other cases. Still, different opinions are possible. Is Cindy Crawford’s mole a cosmetic problem for her? Gattaca has a thought-provoking take on extra digits with “Impromptu for 12 Fingers“. There can be unexpected benefits from doing nothing, from leaving the individual his choice.

The crux is to what extent should we value the right to physical integrity more than the possible medical benefits. It’s shouldn’t be a debate when considering that the harm is objective and the benefits are not. It is more than an unprovable moral notion. Most males will never need the possible benefits cited for non-therapeutic circumcision. And we already recognize the legal harm to females for comparable and lesser forms of harm from non-therapeutic genital cutting. (Yes, there are disparities in the two. They are the same in principle and other important aspects.)

If there was sound evidence that circumcision was affirmatively harmful, I think governments (and busybodies) would have every right to discourage it, including by law for minors, regardless of religious sensitivities. Given that the evidence points in the opposite direction,
the movement in Germany and elsewhere to ban circumcision is unconscionable.

That evidence exists. Every circumcision involves objective harm. The science upon which the AAP relies is essentially the subset that supports circumcision, and which is often barely applicable to the United States (e.g. possibly reduced female-to-male HIV transmission in high-risk populations with low circumcision rates). The lack of need – the health of the child – is also science. Less invasive, more effective preventions and treatments for the ailments circumcision may reduce also constitute science. Condoms, antibiotics, Gardasil, soap, and water are science. To suggest a conclusion can be objective on this net evaluation is absurd because that question for each individual is subjective, as evidenced by the AAP’s own contradictory statement.

The decision to circumcise healthy children because doing so might help them is not libertarian. As I wrote in Friday’s post, let’s temporarily assume what is not true, that the foreskin has no purpose. “It’s mine” is sufficient. Even within a limited view of the right to physical integrity where objective harm is not viewed as harm, one’s body is clearly one’s own property. The onus is not properly on the person who may not want his property taken to accept his loss because his property was taken with good intentions for an exchange in value he may not want.

Liberty, But Only If Your Parents Let You Have It

I have no problem with the label libertarian, even when it’s conflated with the Libertarian Party. I have a problem with being associated with what passes for thinking on the rights of children among too many self-proclaimed libertarians. Somehow the libertarian view for so many shakes down to something equivalent to children as parental property. This is most easily seen when the topic turns to male circumcision. So it is again. In response to charges filed against a rabbi/mohel in Bavaria following the recent court decision in Cologne declaring that non-therapeutic circumcision of a child violates the child’s rights to physical integrity and self-determination, Doug Mataconis writes at Outside the Beltway (links in original):

There’s also been a bizarre movement growing against circumcision itself here in the United States and in Europe. Just last year, for example, a referendum that would’ve banned circumcision in the City of San Francisco was scheduled to appear on the November 2011 ballot before being removed. The motivations for this version of the anti-circumcision movement seems to be something similar to what the Judges in Cologne stated, that it was some kind of assault about a party who is unable to grant consent. …

Surgically removing a normal, healthy, functioning body part from an individual who does not consent should be recognized as battery, yes. That is not bizarre. It’s merely extending the usual rational standard for non-therapeutic surgical intervention on healthy children to male genitals.

… Andrew Sullivan, for example, contends that infant circumcision is an assault on infant boys. Left out of the argument, though, is the fact that parents have been long assumed to be able to competently make medical decisions for their minor children. …

Except there are limits, including a specific limit on the option for parents to make “medical” (i.e. non-therapeutic) surgical decisions for the genitals of their minor children. USC § 116 – Female genital mutilation clearly establishes conditions upon which we ignore this alleged competence. If non-therapeutic genital cutting falls within the realm of making “medical” decisions for a child as a parental right, then 18 USC § 116 infringes on this supposed parental right. If this is about parental rights rather than individual rights, the child, whether male or female, would be irrelevant to the law. It isn’t. It’s about the harm to the child. Section (b) makes it clear that all non-therapeutic genital cutting on female minors is illegal, including any cutting analogous to or less harmful than male circumcision. Section (c) demonstrates that no parental justification will be accepted for this intervention on their daughter(s). The primary consideration becomes whether or not male circumcision is harmful, not this:

… Leaving that argument aside, I would think that any ban on circumcision in the United States would, because of the First Amendment, have to include an exemption for Jews and Muslims who consider the procedure a requirement of their religion.

Because boys don’t have the same basic human rights as everyone else, at least for the physical integrity of their normal, healthy genitals? Eugene Volokh’s parental and religious rights posts during last year’s San Francisco ballot initiative identifies a plausible response to this. Again, the correct question is whether or not male circumcision is harmful, not why parents might choose it for non-therapeutic reasons.

On the question of harm, the evidence is quite clear. Circumcision inflicts harm every time. The individual loses his foreskin. He has nerve endings within his penis severed. He may lose his frenulum. He will have a scar. There is also the risk of complications. Some males will suffer those, and some subset will suffer horrible outcomes. The mortality rate from non-therapeutic child circumcision is very low, thankfully, but it isn’t zero. Treating individuals as statistics is hardly a libertarian position.

Next, he quotes an ad hominem attack by Jonathan Tobin:

Circumcision opponents may claim they are not anti-Semitic, especially since their campaign also targets Muslims. But there is little doubt that the driving force behind this movement is resentment toward Jews and a willingness to go public with sentiments that long simmered beneath the surface in Germany and elsewhere in Europe.

Just last week, French scholar Michel Gurfinkiel wrote on his blog that anti-Semitism has increased in France since the Toulouse massacre in March. Since then violence has grown, fed by what he calls a rejection of Jews and Judaism. In France, these sentiments are fed by the Jew hatred openly expressed by the expanding Muslim population. Throughout Europe, the demonization of Israel hasn’t just increased hostility to the Jewish state; it has served as an excuse for anti-Semitism to go mainstream for the first time since World War Two. Just as some claim circumcision critics aren’t intrinsically anti-Semitic, there are those who blame anti-Semitism on Israeli policies. But when you add all these factors together what you get is an undeniable upsurge in Jew-hatred.

There is significant doubt that resentment is the driving force. I won’t speak for Germany, although I think the court’s ruling was not based in religious animosity. The ethical human rights-based case against non-therapeutic circumcision exists on its own. It’s clear, based in the basic rights to physical bodily integrity and self-determination. The ability to find instances of anti-Semitism does not discredit that case or the general movement to restrict non-therapeutic circumcision to those who choose it for themselves. Where anti-Semitism occurs, and it unfortunately does, it discredits the individual purveyor, not the movement as a whole. And such instances should be denounced without ad hominem against anyone who shares only an opposition to non-therapeutic circumcision on non-consenting individuals.

Mataconis’ response to Tobin’s charge:

If that’s true, then it is a quite troublesome development. Even leaving this element out of it, though, there’s something troublesome about this entire affair. Circumcision has been an accepted practice in Western societies for centuries …

That’s interesting but proves nothing. History provides plenty of examples of rights being violated for a long time. The rights are no less violated. Non-therapeutic circumcision constitutes guaranteed physical harm to the child in pursuit of his parents’ preference(s). It’s the objective versus the subjective.

… and, in the case of two religions, it isn’t just an elective medical procedure, it is a requirement of their faith. …

Being a requirement of Judaism and a recommendation in Islam are relevant, but they are not the first question in this context. The circumcision is being imposed on someone. It’s an odd conception of free
dom that says imposing surgery on someone else is an individual right within religious freedom. Under the proposed public policy stance, religion would have to adapt. That expectation is no different from the numerous declarations in religious texts that we do not permit in civil law. Religion deserves no special exemption. The protection required is for individuals to choose circumcision for their own bodies, not for others.

… The arguments of the circumcision opponents strike me as being little more than ridiculous nonsense that, for some, has turned into some kind of weird cult of the foreskin. As far as I’m concerned, parents are perfectly capable of making this decision for their sons and the state really has no business getting involved in at all. When you bring the element of religion into it, state interference becomes even more problematic. One would hope that the government in Berlin will intervene and put an end to the nonsense that the judges in Cologne started.

Non-therapeutic genital cutting on a non-consenting individual violates basic human rights. That isn’t ridiculous nonsense. We apply it completely to females. We don’t apply it to males. Instead, it’s easier to smear with words like cult and fetish. Fine, if that’s the standard, we should start telling activists against female genital cutting/mutilation that they’re spouting ridiculous nonsense that is some kind of weird cult of the clitoris? We wouldn’t because there we recognize the facts. With circumcision we forget to apply the same standard that protects the property interest of the individual. For reasons. That makes no sense.

It’s certainly not within a reasonable understanding of libertarianism. For anarchists, sure, opposition to the state becomes the overriding goal. But if one assumes a state to be legitimate with a specific interest in protecting the rights of its citizens, then it’s legitimate for the state to prohibit this form of possibly unwanted harm. That is the approach that recognizes humans rather than statistics. (To hope that politicians will step in to reverse a judge is a foolish action to endorse.) Parents don’t just circumcise their sons. They effectively circumcise the autonomous adult he will become. Proxy consent based on anything other than clear medical need is insufficient to permit that.

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Post Script: In the comments to his post, Mataconis responded with a standard trope:

Fine. Then if you have a son, don’t get him circumcised, that’s your choice.

Treating children as property is not libertarian. The correct formulation is “If you don’t want to be circumcised, don’t have yourself circumcised”. That’s the method to protect individual preferences, not the illegitimate force of individual preferences on another. Shared DNA is not a defense.

That flows into a later comment:

What is the medical benefit the foreskin provides?

To the silly question, it protects the glans and provides sexual sensitivity. But let’s assume neither is true. “It’s mine” is sufficient. The onus is not properly on the person who doesn’t want his property taken to explain why his property shouldn’t be taken. Or, at least, that’s what I thought libertarians believed.